Citation Nr: 1510380
Decision Date: 03/12/15 Archive Date: 03/24/15
DOCKET NO. 13-04 294 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUES
1. Entitlement to a compensable disability evaluation for left plantar fasciitis with heel spur.
2. Entitlement to a compensable disability evaluation right foot, plantar fasciitis.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Bosely, Counsel
INTRODUCTION
The Veteran had active service from May 1989 to May 1992 and from May 2000 to July 2003.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.
In August 2014, the Veteran withdrew a prior request for a Board hearing.
The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has not been presented to the Board as a component of the rating claim now on appeal, and a TDIU claim is not otherwise presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is free to raise such a claim at any point in the future, and the instant determination is in no way intended to represent a finding as to the merits of such a claim, if subsequently raised at any point. See 38 C.F.R. § 4.16 (2013); Suttmann v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for a TDIU, even if previously and finally denied, constitutes a new claim).
FINDING OF FACT
Throughout the period of appellate review beginning in June 2011, the Veteran's left plantar fasciitis with heel spur and right foot, plantar fasciitis, are each shown to have been productive of a disability picture involving no more than moderate painful functional effects in her daily life at work and home.
CONCLUSIONS OF LAW
1. The criteria for assignment of a 10 percent rating, but no higher, for left plantar fasciitis with heel spur are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.55, 4.59, 4.71a (2014).
2. The criteria for assignment of a 10 percent rating, but no higher, for right foot, plantar fasciitis, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.55, 4.59, 4.71a (2014).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
I. Duties to Notify and Assist
A. Duty to Notify
VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the Veteran was sent a comprehensive letter in August 2011, which was sent prior to the February 2012 rating decision on appeal. Any defect in the notice is deemed not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, the duty is satisfied.
B. Duty to Assist
VA is required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(d). VA will help a claimant obtain records relevant to the claim(s) whether or not the records are in Federal custody, and VA will provide a medical examination and/or opinion when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4).
VA has met the duty to assist the Veteran in the development of the claim being decided herein as those VA and private medical records reasonably indicated as relevant have been associated with the claims file.
The Veteran has undergone a VA examination in September 2011 to evaluate the severity of her service-connected foot disabilities. The Board finds that the examination is adequate to decide the appeal. The examiner examined the Veteran and fully described the symptomatology and functional effects of the Veteran's foot disabilities. See 38 C.F.R. § 4.85; McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2) (West 2014).
Otherwise, the record now before the Board does not indicate that her foot disabilities have materially increased in severity since the September 2011 VA examination. See 38 C.F.R. §§ 3.326, 3.327; Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In this regard, the Veteran's representative wrote in a January 2015 brief that "If the Board is unable to grant the increased evaluation for bilateral foot condition, we request the Board to remand this appeal." This is not a statement indicating a worsening of the disability. To the contrary, the representative is asserting that the VA examination is adequate to grant an increase, thereby resolving the appeal. Accordingly, the Board accordingly finds no reason to remand for further examination.
For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time.
II. Analysis
The Veteran's foot disabilities, (1) left plantar fasciitis with heel spur and (2) right foot, plantar fasciitis, are each assigned a noncompensable (zero percent) disability rating under diagnostic code (DC) 5284. She contends that higher ratings are warranted.
The instant appeal covers the time period beginning from when she filed a claim for increased ratings in June 2011.
A. Applicable Law
Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The disability ratings are based primarily upon the average impairment in earning capacity resulting from a service-connected disability, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. Where there is a question as to which of two disability ratings shall be applied, the higher disability rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All potential applicable diagnostic codes, whether or not raised by a claimant, must be considered. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).
Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Similarly, in claims for increased ratings, VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007).
After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3.
B. Rating Schedule
Disabilities of the feet are evaluated under the schedular criteria of 38 C.F.R. § 4.71a, DCs 5276 through 5284. The rating schedule is as follows:
5276 Flatfoot, acquired:
Pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances
Bilateral
50
Unilateral
30
Severe; objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities:
Bilateral
30
Unilateral
20
Moderate; weight-bearing line over or medial to great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral
10
Mild; symptoms relieved by built-up shoe or arch support
0
5277 Weak foot, bilateral:
A symptomatic condition secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness:
Rate the underlying condition, minimum rating
10
5278 Claw foot (pes cavus), acquired:
Marked contraction of plantar fascia with dropped forefoot, all toes hammer toes, very painful callosities, marked varus deformity:
Bilateral
50
Unilateral
30
All toes tending to dorsiflexion, limitation of dorsiflexion at ankle to right angle, shortened plantar fascia, and marked tenderness under metatarsal heads:
Bilateral
30
Unilateral
20
Great toe dorsiflexed, some limitation of dorsiflexion at ankle, definite tenderness under metatarsal heads:
Bilateral
10
Unilateral
10
Slight
0
5279 Metatarsalgia, anterior (Morton's disease), unilateral, or bilateral
10
5280 Hallux valgus, unilateral:
Operated with resection of metatarsal head
10
Severe, if equivalent to amputation of great toe
10
5281 Hallux rigidus, unilateral, severe:
Rate as hallux valgus, severe.
Note: Not to be combined with claw foot ratings.
5282 Hammer toe:
All toes, unilateral without claw foot
10
Single toes
0
5283 Tarsal, or metatarsal bones, malunion of, or nonunion of:
Severe
30
Moderately severe
20
Moderate
10
NOTE: With actual loss of use of the foot, rate 40 percent.
5284 Foot injuries, other:
Severe
30
Moderately severe
20
Moderate
10
NOTE: With actual loss of use of the foot, rate 40 percent.
The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see also Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis).
Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Burton, 25 Vet. App. at 5.
Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code (relating to range of motion) where pain does not cause a compensable functional loss. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011).
Pain on motion does constitute functional loss that is compensable under the VA disability system, but compensation for such pain (whether arthritic or nonarthritic) is limited to 10 percent per joint when there is no actual or compensable limitation of motion. See Mitchell, 25 Vet. App. at 36 (quoting the Secretary's argument that "compensation for such pain (whether arthritic or nonarthritic) is limited to 10% per joint when there is 'no actual or compensable limitation of motion.'"); see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).
C. Discussion
DC 5284
Here, a 10 percent rating is warranted for each foot.
Throughout the period of appellate review, including during a private consultation in June 2011, on VA examination in September 2011, and in a written supporting statement in January 2013, the Veteran has complained of moderate to severe pain in each foot, which limits her ability to stand and walk for extended periods of time or distances. These complaints of pain were repeatedly confirmed on physical examinations by a showing of pain on palpation. And, during the September 2011 VA examination, the examiner observed weight bearing that was antalgic and slow bilaterally. During outpatient podiatry treatment at VA in June 2011, she was given night splints and orthotics, and she has been continuously advised to perform stretching to help relieve her symptoms. In her June 2013 VA Form 9, she explained that this impacts not only her work, but had also limited her family life.
Because the Veteran's foot disabilities involve functional limitations with some degree of painful motion, a minimum 10 percent rating must be assigned. See Mitchell, 25 Vet. App. at 36.
The next higher disability rating under DC 5284, 20 percent, is not warranted because her pain is not shown to produce a moderately severe disability picture.
Specifically, in her February 2012 notice of disagreement (NOD), the Veteran reported that she was limited to staying on her feet for 20 minutes. Several months earlier, she informed the September 2011 VA examiner that she should still stand for 1 hour without pause and walk a mile on level ground without pause.
The Board notes that there is a material difference between being able to stay on one's feet for only 20 minutes versus 1 hour. The reason for these conflicting statements is clear, however, when reading the evidence collectively. The September 2011 VA examiner noted that the greater functionality was "under normal circumstances," whereas a June 2011 private medical record, plus her February 2012 NOD, reflect symptoms that varied over the course of a day (she has pain when "ris[ing] in the mornings and aching feet in the evening," and her days at work were "extremely painful" because she could not wear her orthotics). Accordingly, reconciling this evidence into a consist picture indicates that she has a varying ability to stand for as much as 1 hour or as little as 20 minutes. This is consistent with a moderate disability picture. See 38 C.F.R. § 4.2.
More objectively, the September 2011 VA examiner found on physical examination that the Veteran's motion did not appear to be significantly painful or restricted. The Board notes that this finding indicates that there was some pain or restricted motion, but that it was not significant.
Finally, she informed the September 2011 VA examiner that she was having only occasional limitation at work. A January 2012 VA medical record reflects only "mild" tenderness.
Thus, it would not appear that a higher-level of disability is shown.
Also significant in this appeal, the Veteran has multiple distinct disabilities present in each foot, including rheumatoid arthritis, heel spurs, pes planus, and hammer toes. Aside from heel spurs, which is included as a component of her service-connected foot disability, she is separately service-connected for rheumatoid arthritis. This disability has been assigned a 60 percent rating under DC 5002 throughout the instant period of appellate review. The Board notes that this 60 percent disability rating compensates for a disability picture involving rheumatoid arthritis that is not "totally incapacitating," but causes "weight loss and anemia productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods."
In this regard, her ongoing VA Rheumatology records reflect a significant degree of symptomatology in each foot associated with that medical condition. For instance, she was seen in July 2011 for complaints of "lots of pain" in multiple joints, including the feet. A physical examination at that time revealed metatarsophalangeal (MTP) joints that were tender. This was treated as a rheumatoid arthritis "flare." Other medical records, including earlier in July 2010, reflect similar symptomatology. In her February 2012 NOD, the Veteran acknowledged that the rheumatoid arthritis contributed to the disability picture in her feet: "while my feet are not the only condition that contributes to this, my [rheumatoid arthritis] does also, the feet were not as painful and life altering as they are now."
Reconciling this evidence into a consistent whole, the Board notes that the service-connected foot disabilities (plantar fasciitis and heel spurs) are associated with the heel region of her feet. See, e.g., Merck Manual, Home Edition, (explaining that "A person with plantar fasciosis may have pain anywhere along the course of the plantar fascia but most commonly where the fascia joins the bottom of the heel bone."). By comparison, the MTP joints, which are shown to be affected by her rheumatoid arthritis, affect the rest of the foot. See, e.g., Merck Manual, Home Edition, (explaining that MTP joint pain is called metatarsalgia and involves "[p]ain in the ball of the foot.").
Accordingly, it appears that her plantar fasciitis can contribute to pain throughout the foot whereas the rheumatoid arthritis affects the forefoot. However, because this evidence specifically identifies and attributes a material degree of symptomatology to rheumatoid arthritis, which is separately service-connected, the Board cannot find that the plantar fasciitis disability in each foot alone results in a moderately-severe disability picture. See, e.g., Mittleider, 11 Vet. App. at 182.
For these reasons, the Board must find that a disability rating in excess of 10 percent under DC 5284 is not warranted.
Otherwise, a separate or higher rating is not assignable under any other diagnostic code, as follows.
DC 5276
The September 2011 VA examination demonstrates pes planus in each foot. This condition, which is commonly referred to as "flat feet," is recognized as a distinct medical condition separate from plantar fasciitis. See, e.g., 38 C.F.R. §§ 4.57, 4.71a, DC 5276. It is not currently a component of her service-connected foot disability.
Even if it were considered a component of the service-connected disability picture, a compensable rating would not be assignable as there is not a showing of weight-bearing line over or medial to great toe or inward bowing of the tendo achillis. To the contrary, the September 2011 VA examiner found a "[m]ild degree of pes planus bilaterally, but the Achilles tendons were in normal alignment and were nontender."
Accordingly, all of the symptoms for a compensable rating under DC 5276 are not present, which means that a higher (or separate) rating would not be warranted on this basis.
DC 5282
As with flat feet, the evidence shows a hammer toe deformity, but one that would not result in a compensable rating if it was service-connected. Specifically, the September 2011 VA examiner found that the Veteran had a "mild degree of hammertoe deformity bilaterally in the second through the fifth toes." Because this evidence does not indicate "[a]ll toes, unilateral without claw foot," a separate compensable rating would not be assigned under DC 5282. See 38 C.F.R. § 4.71a.
Summary
To summarize, the evidence demonstrates multiple overlapping disabilities in the Veteran's feet. The service-connected (1) left plantar fasciitis with heel spur and (2) right foot, plantar fasciitis, are the only two disabilities within the scope of the instant appeal. These disabilities warrant assignment of a 10 percent rating in each foot based on pain involving some degree of noncompensable functional limitation.
Staged ratings are not warranted. In this regard, a June 2011 private treatment record indicates that the condition was "worsened." There is no indication in this treatment record or elsewhere to more clearly establish when the worsening occurred. In other words, it is not factually ascertainable that the worsening occurred within the one-year look-back period preceding the filing of her claim in June 2011. Rather, the June 2011 private treatment record is the first indication of a worsening. Therefore, the effective date does not reasonably appear assignable earlier than when she filed her claim in June 2011. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Otherwise, the September 2011 VA examination documents that she felt her foot problems were consistent over time. Thus, staged ratings are not for assignment.
For these reasons, the 10 percent rating for each foot are to be assigned throughout the instant period of appellate review.
D. Extraschedular Consideration
The Board's findings above are based on schedular evaluation. Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Schedular ratings are based primarily upon the average impairment in earning capacity, that is, upon the economic or industrial handicap which must be overcome and not from individual success in overcoming it. 38 C.F.R. § 4.15. To afford justice in exceptional situations, however, an extraschedular rating may also be assignable. 38 C.F.R. § 3.321(b). The Board may not, in the first instance, assign an increased rating on an extraschedular basis, but may determine whether referral for extraschedular consideration is warranted, provided that it articulates the reasons or bases for that determination. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). This determination follows a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008).
The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, the level of severity and symptomatology of a veteran's service-connected disability must be compared with the established criteria found in the rating schedule for that disability. Id. If the rating criteria reasonably describe a veteran's disability level and symptomatology, the disability picture is contemplated by the rating schedule. Therefore, the assigned schedular evaluation is adequate and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology, and is found inadequate, the second step of the inquiry requires the Board to determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-16.
Extraschedular consideration is undertaken on the basis of each individual service-connected disability. However, a veteran may also be entitled to referral for extraschedular consideration of her service-connected disabilities based on a collective basis. This is because § 3.321(b)(1) performs a gap-filling function, accounting for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities are nonetheless inadequately represented. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).
If analysis of the first two steps shows that the rating schedule is inadequate to evaluate the disability picture and that picture shows the related factors discussed above, the final step requires that the disability be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. 111.
In this case, the Veteran reported in her NOD that she wears a night splint, which makes sleeping "cumbersome." The Board notes that a sleep impairment is not expressly enumerated in the rating schedule for evaluating the foot. Nonetheless, the Veteran's foot disabilities are evaluated under DC 5284, which provides for ratings based on the overall, comprehensive condition in each foot; i.e. moderate, moderately severe, or severe foot injury. Accordingly, the Board finds that the Veteran's disability symptomatology is reasonably contemplated by DC 5284.
Furthermore, the Veteran's current combined disability rating for all disability ratings is 90 percent. She has not indicated that she is totally unemployable due to her disabilities, and total impairment has not been shown. For these reasons, the Board can find no basis for referring the matter for extraschedular consideration.
ORDER
A 10 percent disability rating, but no higher, for left plantar fasciitis with heel spur is granted.
A 10 percent disability rating, but no higher, for right foot, plantar fasciitis, is granted.
____________________________________________
S. HENEKS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs